Case 2:19-cr-00420-TS Document 20 Filed 10/30/20 PageID.51 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`ISMAEL CARDENAS-AVILA,
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`Defendant.
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`MEMORANDUM DECISION AND
`ORDER CONTINUING TRIAL
`AND EXCLUDING TIME
`UNDER THE SPEEDY TRIAL ACT
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`Case No. 2:19-CR-420 TS
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`District Judge Ted Stewart
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`This Order Continuing Trial and Excluding Time Under the Speedy Trial Act is entered
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`in response to the outbreak of the Coronavirus Disease (“COVID-19”) in the District of Utah.
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`On March 13, 2020, a National Emergency was declared in response to the nationwide
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`outbreak, which the World Health Organization has declared a global pandemic. The numbers of
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`confirmed COVID-19 cases and deaths within the United States continue to increase daily. The
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`United States has more COVID-19 cases as any other country.
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`The Centers for Disease Control and Prevention (“CDC”) has issued guidance to combat
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`the spread of COVID-19, and to promote the health and well-being of the nation. This guidance
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`includes recommendations that all Americans avoid close contact with others (i.e., being within
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`six feet) and wear cloth face coverings in public or when around others. Despite this guidance,
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`the CDC continues to report thousands of new COVID-19 cases in the United States each day.
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`And available evidence suggests there is difficulty in accurately tracking the spread of COVID-
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`19 because many cases go undetected due to varying degrees of symptoms and a lack of
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`available testing.
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`Case 2:19-cr-00420-TS Document 20 Filed 10/30/20 PageID.52 Page 2 of 5
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`In Utah, Governor Gary Herbert declared a state of emergency and issued a “Stay Safe,
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`Stay Home” directive to all Utahns. The directive was initially set to expire on April 13, 2020,
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`but was extended through May 1, 2020. Governor Herbert also extended the “soft closure” of all
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`public schools for the remainder of the school year (i.e., May 13, 2020, to June 5, 2020,
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`depending on the school). Recently, the State moved to “low risk” as case counts appeared to
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`have leveled off. But since then, there has been a statewide spike in case counts. The “low risk”
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`stage still imposes strong restrictions on the general public, particularly in group activities in
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`small spaces. Persons who are older, immunocompromised or considered at high risk of
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`contracting the virus must still take strict precautions.
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`Additionally, Chief Judge Robert J. Shelby has issued several General Court Orders in
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`response to the outbreak of COVID-19 in the District of Utah.
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`• General Order 20-008 placed restrictions on visitors to the District’s courthouse effective
`March 12, 2020, until further order.
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`• General Order 20-009 postponed most civil and criminal proceedings, and included
`findings and conclusions for an “ends of justice” exclusion of time under the Speedy
`Trial Act1 for all criminal cases in the District from March 16, 2020, through May 1,
`2020.
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`• General Order 20-010 modified court operations for some criminal proceedings and
`offender supervision effective March 23, 2020, until further order.
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`• General Order 20-011 expanded video and teleconferencing capabilities for many
`criminal proceedings under the Coronavirus Aid, Relief, and Economic Security Act
`effective March 31, 2020, and continuing for 90 days.
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`• General Order 20-012 extended the postponement of most civil and criminal proceedings
`to June 15, 2020, and included findings and conclusions for an “ends of justice”
`exclusion of time under the Speedy Trial Act2 for all criminal cases through June 15,
`2020.
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`1 18 U.S.C. § 3161(h)(7)(A).
`2 Id.
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`2
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`Case 2:19-cr-00420-TS Document 20 Filed 10/30/20 PageID.53 Page 3 of 5
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`• General Order 20-017 extended the postponement of most civil and criminal proceedings
`to August 1, 2020, and included findings and conclusions for an “ends of justice”
`exclusion of time under the Speedy Trial Act3 for all criminal cases through August 1,
`2020.
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`• General Order 20-021 extended the postponement of most civil and criminal proceedings
`to September 1, 2020, and included findings and conclusions for an “ends of justice”
`exclusion of time under the Speedy Trial Act4 for all criminal cases through September 1,
`2020.
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`• General Order 20-026 extended the postponement of civil and criminal trials to October
`1, 2020, and included findings and conclusions for an “ends of justice” exclusion of time
`under the Speedy Trial Act5 for all criminal cases through October 1, 2020.
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`• General Order 20-029 extended the postponement of civil and criminal trials to
`November 2, 2020, and included findings and conclusions for an “ends of justice”
`exclusion of time under the Speedy Trial Act6 for all criminal cases through November 2,
`2020.
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`• General Order 20-030 extended the postponement of civil and criminal trials to February
`1, 2021, and included findings and conclusions for an “ends of justice” exclusion of time
`under the Speedy Trial Act7 for all criminal cases through February 1, 2021.
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`An “ends of justice” exclusion of time under the Speedy Trial Act is disfavored and “was
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`meant to be a rarely used tool for those cases demanding more flexible treatment.”8 However,
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`based on the ongoing nature of the COVID-19 outbreak in the District, the effect of national and
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`local public health recommendations and directives (including restrictions on travel and the
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`availability of hotel accommodations), and the findings and conclusions in Chief Judge Shelby’s
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`General Orders 20-009 through 20-012, 20-017, 20-021, 20-026, 20-029, and 20-030 it is
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`necessary and appropriate to continue trial in this case and exclude time under the Speedy Trial
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`3 Id.
`4 Id.
`5 Id.
`6 Id.
`7 Id.
`8 United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009).
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`3
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`Case 2:19-cr-00420-TS Document 20 Filed 10/30/20 PageID.54 Page 4 of 5
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`Act. The expanding number of COVID-19 cases and deaths nationally, and in Utah, and
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`Governor Herbert’s extension of the “Stay Safe, Stay Home” directive and “soft closure” of
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`public schools demand modifications in court practices to protect the public health. Courts and
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`court operations are necessarily social operations, involving many people.
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`The need to protect the health of the public in the midst of a deadly pandemic outweighs
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`the rights of Defendant and the public to a speedy trial. Moreover, there is a significantly reduced
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`ability to obtain an adequate spectrum of jurors and available counsel, witnesses, and court
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`personnel to be present in the courtroom for trial. Empaneling a jury, conducting a trial, and
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`arranging jury deliberations, with due regard for health and safety, considering the broad
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`spectrum of participants and their contacts outside the court, is not currently possible in the
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`physical facilities available to the court. Long exposure in confined spaces, which is inherent in
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`trial, increases risk of infection. Video and audio conferencing, used for hearings, are not
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`available for trials. Counsel’s ability to adequately prepare for trial, including locating and
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`consulting with witnesses, and defense counsel’s ability to confer with Defendant, under these
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`circumstances is also greatly reduced.
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`A failure to continue trial under these circumstances would result in a miscarriage of
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`justice9 and would deny counsel for the government and Defendant the reasonable time
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`necessary for effective preparation, taking into account the exercise of due diligence.10
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`Therefore, the ends of justice served by such a continuance outweigh the best interests of the
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`9 18 U.S.C. § 3161(h)(7)(B)(i).
`10 Id. § 3161(h)(7)(B)(iv).
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`4
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`public and Defendant in a speedy trial.11 This continuance is not predicated on general
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`congestion of the court’s calendar or lack of diligent preparation by counsel.12
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`ORDER
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`IT IS HEREBY ORDERED the 3-day jury trial previously scheduled to begin on
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`November 30, 2020, is continued to the 1st day of February, 2021, at 8:30 a.m. Accordingly, the
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`time from the entry of General Order 20-009, March 16, 2020, and the new trial date is excluded
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`from Defendant’s speedy trial computation for good cause.
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`Signed October 30, 2020.
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`BY THE COURT
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`______________________________
`Ted Stewart
`United States District Judge
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`11 Id. § 3161(h)(7)(A).
`12 Id. § 3161(h)(7)(C).
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`5
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